Citation Nr: 1424722
Decision Date: 06/02/14 Archive Date: 06/16/14
DOCKET NO. 10-14 453 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island
THE ISSUES
1. Entitlement to service connection for a psychiatric disability, to include depression with associated pain disorder and posttraumatic stress disorder (PTSD).
2. Entitlement to service connection for a back disability.
3. Entitlement to service connection for erectile dysfunction.
4. Entitlement to service connection for sleep apnea.
5. Entitlement to service connection for tinnitus.
6. Entitlement to an initial rating in excess of 30 percent for degenerative disc disease of the cervical spine.
7. Entitlement to an initial rating in excess of 10 percent for left upper extremity radiculopathy.
REPRESENTATION
Appellant represented by: John S. Berry, Attorney at Law
ATTORNEY FOR THE BOARD
Jarrette A. Marley, Associate Counsel
INTRODUCTION
The Veteran served on active duty from August 1978 to December 1978. In addition, he served in the Rhode Island Air National Guard (RIANG) from September 1985 to April 2001.
These matters are before the Board of Veterans' Appeals (Board) on appeal from January 2009, August 2009 and August 2013 rating decisions by the Providence, Rhode Island Department of Veterans Affairs (VA) Regional Office (RO).
In November 2012, the Board issued a decision that granted the Veteran's claims for service connection for degenerative disc disease of the cervical spine and left upper extremity radiculopathy, and denied service connection for bilateral hearing loss. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In September 2013, the Court vacated the November 2012 Board decision only insofar as it failed to address entitlement to service connection for tinnitus, and remanded the matter to the Board for further action consistent with a Joint Motion for Partial Remand (Joint Motion) by the parties.
A December 2012 rating decision implemented the Board's November 2012 decision and awarded service connection for degenerative disc disease of the cervical spine, rated 20 percent, and left upper extremity radiculopathy, rated 0 percent, both effective February 28, 2008. The Veteran expressed disagreement with the disability ratings and effective dates assigned. An August 2013 rating decision granted an earlier effective date of February 21, 2008 for the grant of service connection for degenerative disc disease of the cervical spine and left upper extremity radiculopathy, and granted increased ratings of 30 percent for the cervical spine and 10 percent for the left upper extremity radiculopathy throughout the appeal period.
The Board notes that the November 2012 decision also remanded the matters of entitlement to service connection for a psychiatric disability, a back disability, erectile dysfunction, and sleep apnea for additional development. As these matters have not yet been re-certified to the Board, they are not before the Board, and are not addressed herein.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
As explained above in the Introduction, an August 2013 rating decision granted increased ratings of 30 percent for the cervical spine and 10 percent for the left upper extremity radiculopathy, effective February 21, 2008. In August 2013 correspondence, the Veteran's attorney expressed disagreement with the August 2013 rating decision. The RO has not yet issued the Veteran a Statement of the Case (SOC) with respect to these issues. Under the circumstances, the Board has no discretion and is obliged to remand these issues to the RO for the issuance of a SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997).
In regards to the claim of entitlement to service connection for tinnitus, in the September 2013 Joint Motion, the parties agreed that the matter should be remanded for further development and adjudication. Accordingly, the Board is remanding the matter in compliance with the instruction of the Joint Motion.
Accordingly, the case is REMANDED for the following action:
1. Provide the Veteran a SOC addressing the claims of entitlement to an initial rating in excess of 30 percent for degenerative disc disease of the cervical spine, and an initial rating in excess of 10 percent for radiculopathy of the left upper extremity. Advise him and his attorney of the date on which the time allowed for perfecting a timely Substantive Appeal of these claims expires. If he submits a timely Substantive Appeal, then return the claims to the Board for further appellate consideration.
2. Adjudicate the matter of entitlement to service connection for tinnitus. If the benefit sought on appeal is denied, the Veteran and his attorney should be furnished with an appropriate statement of the case and be afforded the opportunity to respond.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).